I was critical earlier this year when lawmakers in my home state of Maryland enacted “Grace’s Law,” purporting to ban so-called cyberbullying — in this case, the use of hurtful online language as part of a course of conduct that inflicts serious emotional distress or harassment on a Maryland juvenile, apparently whether or not the speaker knows that the person distressed by the speech is a Maryland juvenile. I predicted that the law would run into trouble in the courts for infringing on much speech protected by the First Amendment.
On Tuesday, the new law took effect, and this morning Maryland attorney general Douglas Gansler unveiled a joint initiative with Facebook and the National Association of Attorneys General (NAAG) in which Facebook will create a new program for school officials, the Educator Escalation Channel — initially limited to use in the state of Maryland, presumably pending similar enactments elsewhere — allowing the officials to object to Facebook users’ content. Per local radio station WTOP, Maryland school officials will be offered the chance to flag “questionable or prohibited” language. That is to say, they will flag speech that isn’t prohibited by the new law but which they deem “questionable.”
The targets of the new program, according to Gansler as quoted by WTOP, include persons who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” That is to say, Gansler believes he has negotiated power for school officials to go after speech that is not unlawful even under the decidedly speech-unfriendly definitions of the new Maryland law, but which they consider hurtful and lacking in “redeeming societal value.”
Already, defenders of the new program are arguing that there’s no problem here, because Facebook as a private entity is free voluntarily to put whatever terms it wants to into its user agreement and enforce them however it likes. Of course, private companies deal voluntarily with a group of state enforcers like the NAAG only in the sense that you or I deal voluntarily with the Internal Revenue Service.
Can we now finally start taking the First Amendment implications of these laws seriously?